Chief Justice Warren E. Burger: -- next in 71-300, Andrews against the Louisville & Nashville Railroad Company and others.

Mr. Estes you may proceed whenever you are ready.

Mr. Andrew W. Estes: Mr. Chief Justice, may it please the Court.

I represent Thomas L. Andrews who used to be a railroad man.

One day Mr. Andrews had an automobile accident, which had nothing to with his employment where he was injured necessitating a medical furlough which he was duly given.

In due time he regained his health and attempted to return to work.

When he got back, tried to go to work, he found that he was still on medical furlough and even with the doctor' certificate he was not permitted to work, and of course he was not paid either.

The Railroad, of course, in its defensive pleadings contended that he was neither a fish nor a fowl, that he was not employed and he was not discharged.

Mr. Andrews in his complaint, originally in the State Court, then removed to Federal District Court contends that these acts and other acts amount to a common law of wrongful discharge which the state of Georgia recognizes as a common law action.

Now what we have today is really a jurisdictional question and it's to determine whether or not courts have jurisdiction over a common law wrongful discharge action arising out of a discharge of a union railroad employee or whether the employee must, and I use the term exhaust loosely of the moment, exhaust his administrative remedies.

I think I can show later that we no longer have an exhaustion of the administrative remedies, rather it amounts to an election of administrative remedies.

The Court has undoubtedly noticed how brief the petitioner's brief is, because we have a very simple contention.

We rely primarily, almost solely on the Moore versus Central Illinois Railroad Company decided by this Court in 1940.

The rationale in that case of course was that a railroad union employee could elect either to pursue his administrative remedies or could sue in the court of law for a common wrongful discharge, and we rely squarely on that case.

Mr. Moore was fired by the Illinois Central Railroad because he had the audacity to sue them on an FELA case, should understand that as general --

Justice William O. Douglas: He wants the reinstatement or --

Mr. Andrew W. Estes: No, Your Honor, he does not.

He wants to sue them for damages.

The board could, if he made his election and I don't call that exhaustion, but if he made his election, the board could reinstate him, grant him back pay, and give him his job.

He doesn't want that.

He wants to sue for damages.

This Court has said, by the way, on numerous occasions and I will quote in the Slocum case, a common law statutory action for wrongful discharge differs from any remedy that board has power to provide and does not involve questions of future relations between the railroad and other employees.

Of course, this general philosophy was stated very well by Mr. Justice Blackmun in the Arguelles case which I've cited not, by the way, as authority for this case, but because of the language in that, I would like to get to it a minute.

Justice William J. Brennan: It's definitely -- what would be the measure of damages in the lawsuit?

Mr. Andrew W. Estes: I think there would be several things, sir, Mr. Justice Brennan.

One, of course there would be the difference between the wages that he would have made with Railroad and wages he has in the past.

Also, prospectively --

Justice William J. Brennan: Then I gather this -- the crux of the liability would be wrongful discharge, is that it?

Mr. Andrew W. Estes: That's right, Your Honor, under a common law theory.

Justice William J. Brennan: Before the board I gather -- the board could award back pay, a back pay for wrongful discharge, but nothing in excess of that pay, is that right?

Mr. Andrew W. Estes: That's right.

Justice William J. Brennan: Whereas your asking damages which will be more than just back pay?

Mr. Andrew W. Estes: That's right, it would be post factor as well.

Although, I believe in rare instances the board can, I believe can award attorneys fees.

I think [Voice Overlap]

Justice William J. Brennan: But not in -- wages are limited to lost wages theory, are they not?

Mr. Andrew W. Estes: That's right Mr. Justice Brennan, plus reinstatement working back at the railroad.

Justice William J. Brennan: But in your lawsuit, you'd be asking for damages -- well would you specify that again?

Mr. Andrew W. Estes: Well, general damages being, the measure of damages, of course, we would look to the current trend, see what his wages would have been had he been employed, and what wages he has earned, the difference being the measure of damages that would be retrospective and in post factor, of course it would be a jury question to determine what his future damages might be.

Justice Byron R. White: Do you think that he could be never prospective -- prospectively the difference between what he is thinking in another job, what he would have made with the railroad?

Justice Byron R. White: And he has the choice of not working for the railroad and have the (Inaudible)

Mr. Andrew W. Estes: Georgia recognizes a doctrine known as constructive service, where a man makes himself available for work under his employment contract he can remain available and say I am ready to work and you have to pay me.

Now of course if they offer --

Justice Byron R. White: The railroad says, we would be glad to put you back to work and he says, no I want to keep the other job, but I want you to pay me the difference between my lower wages on the other job?

Justice Byron R. White: If the railroad will put him back to work and if the Adjustment Board would order his reinstatement, but he says, no I don't wanted to be in reinstatement, but I don't how could you claim damages out of the railroad?

Mr. Andrew W. Estes: But I would nonetheless, going to the extent I don't think the acts can cut both ways.

I don't think it --

Justice William J. Brennan: No, but Mr. Estes, you say in any event it's a law question, don't you?

Mr. Andrew W. Estes: Yes sir.

Justice William J. Brennan: Whatever measure of damages, respective of what might be the limitation if he followed the federal rules to the Adjustment Board, in the courtroom if you are allowed to bring your action under the State Law then you could cover whatever they --

Mr. Andrew W. Estes: That's right.

Whatever the State Law provides may vary from state to state as well.

Justice Byron R. White: Do you think that State Law would govern the -- what he can recover under a contract with the railroad?

In fact there are two cases, I would like to discuss in this connection.

The first is Union Pacific Railroad Company versus Price, I will call it Price case.

Justice William J. Brennan: That's one I wrote?

Mr. Andrew W. Estes: I believe so.

This is a case that really destroys your exhaustion of remedies and makes it an election of remedies because here Mr. Price was fired.

I think he also sued the railroad under FELA action.

They fired him because of it.

He pursued his administrative remedy.

The Adjustment Board found that he had been properly discharged.

So he said, okay, I have exhausted my administrative remedies, I will go into my court and of course holding of this Court in that case was that you can't re-litigate similar issues.

So, we can forget about exhausting of administrative remedies and I think we should from now on be discussing election of remedies.

No case has really undermined the Moore decision as the railroad contends.

Even the case of Roy Walker versus Southern Railway, that's a real bugaboo case unfortunately because it set some real misapplications to stop while its not a wrongful discharge type case to begin with and should not fit within the particular more exclusion and should not be applied to it.

What it really was a was a competition in time case.

Mr. Roy Walker also took sick leave, He gave the railroad notice that he was ill.

The railroad contended that he had given it too late within 30 days required by the contract.

Roy Walker contended he had given it in time.

The question really that was not wrongful discharge but was a case whether or not he had given this notice in time.

So it was time confrontation case.

Chief Justice Warren E. Burger: Did you call this an election of remedies case?

Mr. Andrew W. Estes: I think it is now because of the Price case Mr. Chief Justice.

Chief Justice Warren E. Burger: Being an election of remedies case, do you are still contend that you can collect damages for future unemployment, if the railroad tenders the employment to him as Mr. Justice White suggested?

Mr. Andrew W. Estes: I think that's a question to be determined by Georgia Law and by a Jury, Your Honor. I agree that I think --

Chief Justice Warren E. Burger: By a jury, it's not a legal question?

Mr. Andrew W. Estes: It may be a mis-question of law, in fact depending on on whether or not the offer is believable.

For instance, Mr. Andrews in this case may very well and I would state in my place, probably will on the trial of the case show by evidence that his wrongful discharge was occasioned by things other than his illness and that the illness was a mere charade, a mere sham and there are other reasons the railroad wants to dump him, and that the offer is not a real genuine or bona fide offer but is a way to mitigate damages.

Much is attached in an FELA case where the railroad argues to the jury, well, he has done this wonderful job, ironies and what not, their total verdict and then he gets fired.

So, I think it maybe a mixed question of law in fact and I think it could be properly submitted to a jury predicated on State Law.

Justice William J. Brennan: I suppose the questions we have been putting to you address issues really not before us in this case, is that right?

Mr. Andrew W. Estes: No, no.

Mr. Justice Brennan, as matter of fact I think these are key questions, because of the collateral cases surrounding the original Moore decision, that it confuses the situation so badly.

As I first stated --

Justice William J. Brennan: Yes, but if we would overrule Moore --

Mr. Andrew W. Estes: If you would overrule Moore --

Justice William J. Brennan: -- and that line of cases that would mean you would have to go with Adjustment Board, wouldn't it?

Mr. Andrew W. Estes: Not only would Mr. Andrews have to go to the Adjustment Board, Mr. Justice Brennan, you would forever slam the court house door in any other claim --

Justice William J. Brennan: As I recall the dissenters in Walker thought we should follow that question?

Of course the foundation of the Roy Walker case, it's our contention that it is not really well laid.

I think as Mr. Justice Stewart and Mr. Justice White pointed out, you can't really make a jurisdictional determination on how well or fully railroad Adjustment Board is doing.

It would be patently discriminatory, what if some poor fellow up in New York who's board is way behind because they have a lot of claims.

So, he gets to sue and the guy in Southern California where they don't have many claims, where he has to go through the board.

Justice William J. Brennan: What is -- I remember, let me say something, Walker sometimes took 10 years to get through the Adjustment Board, can't they send and enact a statute to --

Mr. Andrew W. Estes: Speed up remedies --

Justice William J. Brennan: Has that happened or not?

Mr. Andrew W. Estes: Yes, Mr. Justice Brennan, it has happened.

About 50% of collective decisions --

Justice William J. Brennan: [Voice Overlap] five years you mean --

Mr. Andrew W. Estes: Well even less, say four years or in some places one-and-a-half years.

They vary, but of course you can have a variable jurisdiction throughout the country depending on how the board is doing.

Besides that, what if the board slow down five years now, going to let more Roy Walker slip through.

Well, I think they couldn't very well do that either, that would be discriminatory.

It really shouldn't be predicated though on how well the board is doing.

It's a matter of jurisdiction.

Justice William J. Brennan: How exactly -- under the amended statute unlike the situation of the time Price was decided, is it they are now a judicial review of that, both ways?

At the time Price was decided, you said there was judicial review under the then statutory scheme for the railroad, but not for the employee of a -- an Adjustment Board decision, isn't that right?

Mr. Andrew W. Estes: That is right, Your Honor.

Justice William J. Brennan: But now under the new statute there is a judicial review, is it there, both the employee as well the railroad may have it?

Mr. Andrew W. Estes: Well, may it please the Court, I would take the position that a judicial review is not a review they now -- I maybe mistaken but I think that the findings in fact [Voice Overlap] the case --

Justice William J. Brennan: But we said in Price there was no judicial review at all on the part of -- available to the employee?

Mr. Andrew W. Estes: Perhaps you did Mr. Justice --

Justice William J. Brennan: But now there is some at least whatever --

Mr. Andrew W. Estes: It's my understanding that Mr. Price would not be permitted to re-litigate issues already determined and it would be petitioner's contention, that would be basically the same as now that when a matter once decided would not be re-litigated on factual finding.

There is another interesting thing about the 1966 amendments which I respectfully submit was totally overlooked by the Court in the Roy Walker case which is that the 1966 amendments should be a clear designation of legislative intent in this regard.

That is to say, sweeping changes were made and some real positive things were done by the legislature to speed up the remedies, all sort of balance and add a little bit too, I think.

But in all of the committee reports and in all of the legislative committee meetings and the history of the legislature there, and in the legislation itself, there is not one single word, not one iota of change as to the scope of the jurisdiction of the board, nor the limitation of the Federal or State Courts in these matters.

I don't know where you can get a much clearer mandate in a legislature.

They had their opportunity.

It was a big crisis.

It was a big issue. =

Something had to be done.

They did some procedural things and they dare not touch the authority or the scope of the jurisdiction --

Justice William J. Brennan: But this argument didn't affect the -- they meant that Moore should continue to be effective in situations where it might properly apply?

Mr. Andrew W. Estes: Absolutely correct, Your Honor.

I think this is a perfect opportunity to end this legal battle or the chipping away and the pecking away of Moore with the Koppal decision.

There is another area, I would point out to the Court which is the real distinguishing characteristic between what I call Moore type cases, that is to say a purely wrongful discharge case and a Slocum type case or Charlie Maddox type case, that's Maddox versus Republic Steel Company.

These are cases where someone, and by the way the Slocum type case, Mr. Slocum was the Chairman of the railroad union, two unions were in dispute as to who had jurisdiction over certain area of work.

The railroad attempted to file in State Court an action for a declaratory judgment to make a determination and of course, they were required to go by the arbitration method.

This was completely distinguished in the Slocum case from the Moore type case where this is an ex-employee who is not involved in rights by the railroad employees, and he is still in the railroad just like their (Inaudible).

The Walker case is like a Slocum case.

Charlie Maddox's case was a case where Charlie Maddox had been properly laid off and was suing only for severed claim in the contract.

Now I said that I would come to the Arguelles case.

I want to mention it just very briefly because I think that can straighten out some also very unfortunate language that came out of the Roy Walker case, and that was the language that the Court of Appeals in the instant case used, even though they conceded that although the law was on my side nonetheless a ruling against me was this, the overruling act has also held that is about a certain as a season, changing as the season coming from Mr Justice Black in that case.

Mr. Justice Black, in the Arguelles case made a very strong, very fine statement and I think it reflects the feeling of this Court, the thrust of this Court and its perseverance and continue to try to maintain the courthouse door is open to the public, to the little man, where Mr. Justice Black and this was consideration, by the way Arguelles case was a seaman suing under a statutory right to elect.

The Court says, in Arguelles the legislature clearly preserved his right to sue.

In the Section 301, in which the case has been, Section 301 the legislature has not clearly taken it away, and it would be highly precipitous for this Court or any court, to remove the man's right to litigate a wrongful discharge, a common law action in a court without specific legislative action and no clear reflection of any legislative intent toward that direction in any event.

Justice Byron R. White: Let's assume your client wanted reinstatement; could he get it in court?

Mr. Andrew W. Estes: Could he get a reinstatement in court?

Your Honor, I don't believe so, I think --

Justice Byron R. White: Why not?

Mr. Andrew W. Estes: Well, I don't believe you can force someone to be employed somewhere.

I don't believe the railroad to be forced to make him, he was an electrician, so say, I don't believe that you can force a railroad to let him put together their switch box, they may have to pay him, may have to give him damages, but I don't believe that they have got to employ.

Mr. Andrew W. Estes: Mr. Justice White, in all probability a court could tell the railroad either it had to hire him or --

Justice Byron R. White: You don't think that the Adjustment Board has exclusive jurisdiction for the reinstatement?

Mr. Andrew W. Estes: No.

Justice William H. Rehnquist: Is it your position that even if the Adjustment Board would order reinstatement, the railroad would be free to say we just don't want this particular man working for us, we'll pay him the money, but we don't accept his services?

Mr. Andrew W. Estes: That's never been litigated to my knowledge, Mr. Justice Rehnquist but that would be my position, yes.

Because you can't make the railroad put someone in their machine shop monkeying around with their equipment that they don't want.

Justice Potter Stewart: No court of course can order somebody to work for an employer and that's just as the first day of the contract, (Inaudible)

Mr. Andrew W. Estes: If it please the Court, I would like to reserve the rest of my time for rebuttal.

Chief Justice Warren E. Burger: Very well Mr. Estes.

Mr. Major.

Argument of William H. Major

Mr. William H. Major: Mr. Chief Justice, may it please the Court.

I somehow get the feeling that if you argue in favor of a court trial, that means you are for the working man and if you argue in favor of administrative remedies, that means you are for the railroad.

And I don't think that's right and I don't think it is reflected in the Congressional history of this Act, and I don't think it is now the present thinking of labor and the railroad that, that is correct.

I submit that the Railway Labor Act was an act sought by both the unions and the owners of the railroad.

That in those days in 1926 when the Act came into being, there was a feeling of voluntariness in the eyes of the Congress that they could simply prod one side and the other side by means of the Railway Labor Act and achieve the desired results.

And that is what is done in the area of major disputes, those disputes arising out of giving the contract to start off with, that's where the union has a right to strike when the prodding doesn't work, although the railroad has a right to lock out and that is on a voluntary basis.

On the other side of the coin, in minor disputes where you have the interpretation or application of contracts; both the union and the railroad have been in favor of that administrative remedy.

Now I don't know how the case of Moore ever came to be in view of the legislative history because if you look back in the 1934 Amendments which took place of course shortly after the passage of the Act, when they found that the minor dispute area wasn't working because of the fact that it was voluntary, the union has voluntarily appointed the Board of Adjustment members and the railroad voluntarily appointed their members and neither side would do it, and they found that wasn't working.

And both the unions and the railroads came back to the Congress and in effect said, it's not working and we have got to do something about the area of minor disputes.

And bear in mind of course that the word minor dispute is a word of art that the framers of the act used not because they thought that the disputes were minor, but to distinguish them from strike issues, they used that word of art.

As a matter of fact, when the Amendment was in the committee, it was proposed by the Federal Court in the area of transportation, an office that no longer in existence but he said the existence of mandatory Boards of Adjustment would create nice enough and more consistent in the interpretation and application of contracts.

Chief Justice Warren E. Burger: Mr. Major, you will have to watch your notes in relation to the microphone, its a little difficult.

Mr. William H. Major: And in those committee hearings, a member named George M. Harrison, who probably had as many credentials as a union may have, he was president of the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees and appeared as chairman of the legislative committee of the Railway Labor Association, he said this in substance.

He said, these areas of minor disputes that we are looking at in the form of the compulsory Adjustment Board, they may very well involve a man's seniority, a man's pay for amount of work done, his promotion rights and then I quote him as saying, it may very well concern the separation of the employee from the service, whether or not he has been unjustly discharged.

So as early as 1934 in the Congressional hearings, the union representatives were talking about mandatory Boards of Adjustment to take care of the disputes between the railroad and the working man over matters of promotions, seniority, rates of pay, including discharge.

And then this Court came along and decided Moore in-spite of that legislative history.

Even more remarkable is the way in which Moore was decided.

You understand the Railway Labor Act in exhaustion of administrative remedies was and (Inaudible) in Moore.

It wasn't even briefed by the winning side as a matter of fact.

Moore came upon then novel Erie question.

Moore was in the State Court and it was a statue of limitation questions involved, whether a one-year statute controlled as Moore's contract or the six-year written contract with the Union and it got to this Court on the thinking that the State law controlled.

As a matter of fact later on in amplifying Moore and distinguishing Moore in the case of Koppal, this Court held, “you must exhaust your administrative remedies in your state if your state requires exhaustive remedies, but you need not if your state does not require the exhaustion of remedies.”

So, you have Moore on one hand and Koppal on the other hand, one of them saying that you had to go the Adjustment Board, the other one saying it didn't depend on the act and the way you happen to be fired, as it were.

However this Court I think has now fully and finally solved the question of whether State law or Federal law applies.

I think in the case of Textile Mills versus Lincoln -- Textile Workers versus Lincoln Mills, decided by this Court in 1957 and also the case of International Associates of Machinists against Central Airlines, this Court has once and forever solved the problem by saying that anything under the Railway Labor Act involving minor disputes is controlled by Federal law.

Therefore, when we say that this man who has been discharged doesn't have a remedy that's available to the middle man, as he has expressed, it's contrary to the thinking that the Unions and to the thinking of the framers of the Bill as it came through the Congress and it's contrary really to the thinking of this Court.

It is true that --

Justice William O. Douglas: He doesn't have a -- he has no power to go through the Adjustment Board himself, does he?

Mr. William H. Major: He does indeed, Mr. Justice Douglas.

Justice William O. Douglas: He had to go through the Union?

Mr. William H. Major: If my understanding of the Act is correct, he has an absolute right to go himself.

Now, where he may not be able to go himself is to a Public Law Board.

Justice William O. Douglas: No, but in terms of Section 3 (2) says that the request either made by the representative of proctor class of employee or by the carrier?

Mr. William H. Major: It is my impression that the 66th Amendment of the Act --

Justice William O. Douglas: I am reading the 66th Amendment.

The only thing he has is if his Union questions the claim and looses then he can appeal.

Mr. William H. Major: Reading 'J' of this Section, it says parties maybe heard even in person by Council or by other representative as they may respectively elect and I would assume that means if a party can be heard in person, a party means an individual rather than the Union, I would guess.

Justice William O. Douglas: But as I read Section 3 (2), the Amendment of 1966, it receives complaints only by Unions or by carriers?

Mr. William H. Major: Mr. Justice Douglas, if that is true then my conception of the Railway Labor Act or my dispute is erroneous because it was my definite impression that not only could it be done, but it was being done daily before the Adjustment Board.

Justice William O. Douglas: But I just wondered how a Union normally would be the spokesman, if they are reading statement taking care of the interest of the employee in the future, but if the employee wants to put this thing behind him and get out of the business and never go back and work again than the Union is might not be a very good representative of him?

Mr. William H. Major: That is always of course a possibility Mr. Justice Douglas.

In that connection of course the criticism that this Court found of the whole situation as assumed by Walker against the Southern Railroad was one of delay and another of inequity.

The delay that has been referred to and which is referred to in that decision is the delay of Adjustment Board.

The first division, for instance had a delay of at that time was seven-and-a-half years.

With that in mind the Congress in 1966 attempted to remedy the situation on the question of delay and again it is quite remarkable in the committee hearings just what happened.

In those committee hearings there was days and days of hearings and so there is all kind of material in there, but the remarkable testimony of Mr. Jesse Clark who identified himself as President of Brotherhood of Signalmen on behalf of the Railway Labor Executive Association and its 22 member Union group, testified thusly.

He said if the objectives of speedy, fair and simplified handling and some of contract claims and grievances in this industry are to be achieved, it would be done by reducing to a minimum rather than by expanding the role of the Courts in this field.

And so there is a Union man himself saying that we, the Union men are the ones that want as well as the Railways do, some way to break this backlog.

And so in order to break the backlog, they changed the law to provide man for what has been commonly known as Public Law Boards.

A Public Law Board is nothing more than a Railroad appointing one man, the Union appointing one man, they meet together and it can be done within 30 days, they meet together and solve the disputes.

If they can't solve the dispute, they ask the Mediation Board to appoint a neutral referee who breaks the deadlock and they solve it and their decision has the same force and affect as if the entire Board of Adjustment met and decided the matter.

Justice Thurgood Marshall: Well what happens if both the Brotherhood and Management, both decide that this man is ought to be thrown out of his job?

Mr. William H. Major: Well he has a contract that probably -- the Brotherhood I wouldn't think would have anymore right to throw him out of the job and then would the Union.

They wouldn't have the right to throw him out of the job.

He works under a Collective Bargaining agreement.

Justice Thurgood Marshall: It has always worked and in fact in some instances where man is just is not loved by anybody?

Mr. William H. Major: You mean, he gets double crossed by his own Union, is that what you are referring to?

Well, I think that the that the answer.

Justice Thurgood Marshall: I imagine Congress has figured that would be the exception rather than the rule?

Mr. William H. Major: There is no prohibition against him suing his own Union obviously and secondly I don't think that again there is any problem in that regard because if he has a contract right, the Adjustment Board can give him just the same relief as the Court can.

Justice Thurgood Marshall: And Union can't violate the contract just to take care of the guy they don't like?

Mr. William H. Major: I would not believe they could Mr. Justice Marshall.

What happened was when they created these Boards of Adjustment and we attached as part of our brief, a table of the report of the National Mediation Board, which includes the report of the National Railroad Adjustment Board and these divisions are not geographical, they are by trials you understand, the division that Mr. Andrews is in is substantially current.

You will notice from the table that they have only taken in 69 new cases last year and they disposed off, pardon me, that's wrong, 162 cases and they disposed all 300 cases and they are substantially current.

So, there is no reason in the world, that Mr. Andrews could not get a very speedy hearing before his division of the Adjustment Board and as to what he can get when he gets there that obviously is one of the key question is can he get the same thing he can get in Court.

According to law of Georgia it is highly dubious that a man can go into court and sue for wrongful discharge, while at the same time refusing to take back employment that has been proffered to him by his employer because of the fact that he must mitigate his damages and the offer of his job back simply shows that he hadn't any substantive damages in the future.

And so therefore the only thing that he can get is a money judgment for such amounts of actual lost wages that he has accrued.

Now that's not true necessarily before the Adjustment Board.

Before the Adjustment Board he can get back pay, he can get seniority adjustments, he can get Attorney's fees in some instances and he can also get a reinstated and if they say he must go back to work then the Railroad must put him back to work and the Railroad doesn't have any choice.

So, it may be that they can get more than he can get in court.

I don't think it would be erroneous to say that perhaps he can get reinstated by a court action.

But, certainly a speedy remedy is readily available for him to just get everything that he can get in a court house.

It is interesting to me that Moore has been perhaps explained rights and laws, accepted – it's -- everything done to it, but nobody has yet either fully affirmed it or fully overruled it.

It seemed to me sort of an embarrassing step child sitting back there and we say that now in view of the history of the Act there is no longer any reason for Moore to exist.

The fundamental reason of course is that you have an administrative hearing rather than Court hearings in this area, in the Railway Labor area is the fact that in addition to speed that you get uniformity of decisions.

As it now stands if you can sue on these contracts, these contracts are highly complex, in that they are part written and part customer of the trade as it were.

Justice Byron R. White: Now if I may ask you, assume a railroad worker has a grievance under the contract and they try to settle it on the property and just didn't settlement and neither side takes it to the Adjustment Board, that isn’t -- the only way it gets to the Adjustment Board is if somebody takes it there?

Mr. William H. Major: Yes sir.

The case (Inaudible), is that your question Mr. Justice White?

Justice Byron R. White: What I really am asking, may the railroad and the worker together waive the Adjustment Board?

Mr. William H. Major: Worker and the Railroad together may enter into a settlement of problems --

Justice Byron R. White: Yeah but they don't settle it, but the Railroad says but we don't want to go to the Adjustment Board, you don't want to go to the Adjustment Board, go to Court, we will settle it in the Court.

Mr. William H. Major: Your question Mr. Justice White is broader in that your question is may the parties in a situation where administrative exhaustion of remedies is required maybe they waive the exhaustion of administrative remedies?

Justice Byron R. White: No, exhaustion administrative remedies required, all the Act says is that somebody can it take it to the board and if somebody takes it the Board, the other party is got to go there too.

I would seriously doubt that under the Act as it it presently stand and under your decisions, there is anything to litigate in the court house anymore in connection with the Railroad Labor Act.

Now whether you could say the parties waive the act and decide to file a private lawsuit over here, I would think the Court would question its own jurisdiction under those circumstances.

I just don't see any concept of the Railway Labor Act dealing with anything other than mandatory on both sides.

I suppose of course, that you can do anything almost by agreement, and I suppose that you and I could litigate in Florida although neither one us live there unless court has this part but --

Justice Byron R. White: If union refuses to go to go the board -- Mr. Justice Douglas was asking if the union refuses to go the board when the employer turns the grievance down, the worker can't go to Court, they can't go to the board.

Is that it?

Mr. William H. Major: I am of the opinion that the individual himself can go the board and it is not depended on his union taking it there?

Justice William O. Douglas: That is what the statute says and in your brief instead it’s just the opposite.

Mr. William H. Major: I was --

Justice John Paul Stevens: Employee representative can go --

Mr. William H. Major: I thought that the Public law boards were limited to the union but I was always of the impression that the board itself was open to an individual without his union representatives and that my perception of the law.

Justice Potter Stewart: I have read somewhere in these briefs -- I've read them some time ago, but in the statistics it shows that there are several cases that have been filed by individuals, not by --

Mr. William H. Major: I am sure a public law board --

Justice John Paul Stevens: [Voice Overlap] says the remedy, that's 1966 remedy was provided that either a carrier or employee representative would request to the other [Inaudible] to the special board.

Mr. William H. Major: Yes, that's a special board, that's a so called public law board, but that's not, that's where -- approaching one member and when I am approaching other member, that is public law board and Your Honor eminently correct that has to be done by the union representative, but to go with the adjustment board itself and one of the definite question, an individual can do without his union going with it.

Justice William H. Rehnquist: But, isn't the public law board that had speeded this thing up?

Mr. William H. Major: Well, public law board was exactly created by the 66th Amendment for the purpose of speeding it up and they have speeded it up.

Justice William H. Rehnquist: So, if the only way an individual union man can go is not to the public law board, but to the adjustment board as a whole you might not get the benefit of the speedy treatment that was contemplated in 1966?

Mr. William H. Major: We think exactly he will get the speedy treatment because -- by reference to the table in our brief Your Honor will readily see that the adjustment boards don't have the backlog of cases they had.

This man's division for instances is on less than a year's time schedule.

Now, for the first division is where the backlog always was is not that current, but it looks like from computing the figures that by June of next year they would be on about a year backlog basis, and that's what means you go to Court trial.

As matter of fact this man has been litigating for three years on this case, he hadn’t has trial yet and so obviously the public law boards are going to speed up tremendously but even if he has go with the full board, he is much faster than if he goes to Court house.

The uniformity of the decision questions that I was speaking about has to do with the fact that these boards report their cases that they handle and they therefore have uniformity of decisions.

Whereas if the worker must go to the Court house for interpretation of his contract, the Federal judge sitting there on the District level has a very awkward task before him because in Atlanta, Georgia for instance, the only place where the reports of the adjustment board are on file and record, we know is the (Inaudible) of the Railroad.

So, if the federal judge had one of these cases in Atlanta, trying to look for precedent would be almost impossible unless he wants send his clerk over to the railroad office. Last, of course is the question of expertise before these boards.

The average man doesn’t get fired just willy-nilly of course there cases of that.

This man for instance, is not fired.

This man has been on furlough because of medical reasons.

He is perfectly free to walk back in the railroad office tomorrow and say I demand my job and they said fine, go to the doctor and if he passes you, you are back at work that's what the union contract says, that’s what collective bargaining agreement says.

If the doctor doesn't pass him then he is totally free, if he thinks he has been mistreated of course to go the Adjustment Board.

So, what I am saying is that the question of expertise has something to do with it.

Of course this the man that gets fired for breaking the coupling, the engineer if gets fired for breaking the coupling, that might sound to be a right stringent thing to do to him just to breaking a coupling.

But what the Railroad knows is that you don't get fired for breaking the first couplings, you get fired because you have broken the series of couplings and it's symptomatic of the problem that you will be a bad engineer not because you broke one coupling or if you go through and broke and then blow its whistle, you will get fired for that first time you get fired after accumulation of those kind of offenses.

And when you speak about (Inaudible) derailers and hydraulic couplings, the average judge doesn't know what you are talking about.

That is something that the member of these board know, they deal with it every day and therefore the worker gets a degree of expertise before these boards that he doesn't find at Court house.

In summary therefore we say that the problem that this Court looked at in the Walker decision has vanished because of the fact that the Congress has amended the act and now a speedy remedy is available.

The inequities that this Court looked at in Walker case is gone now because of the fact that the Congress in amending the act in 1966 provided for an appeal by either side instead of the mere de novo appeal which only the railroad could take advantage of as previously the law.

Justice William J. Brennan: And what's the employees feel now on the 66 act?

Mr. William H. Major: Exactly the same as the Railroad is --

Justice William J. Brennan: De novo?

Mr. William H. Major: -- it is not the de novo Mr. Justice Brennan.

It is limited to fraud or corruption or a failure of the board to confine itself within the frame work of the act.

Justice William J. Brennan: In another words you are treating the board pretty much as an arbitrator?

Mr. William H. Major: Yes, almost exactly on the question of arbitration yes.

Justice William J. Brennan: And is that true on both sides that on the review – railroad review or an employee review.

Mr. William H. Major: The review is equal on both sides and exactly in the same manner.

And so we therefore say that Moore has no reason to exist.

It probably doesn’t need to be reversed or overruled for reason that new situations have taken place within the act that give it a new day, but it necessarily it means that Moore no longer is the law and that the administrative remedy provided by Congress is correct route for the employee to go.

Chief Justice Warren E. Burger: Thank you, Mr. Major.

Mr. Estes do you have anything further?

Rebuttal of Andrew W. Estes

Mr. Andrew W. Estes: Mr. Chief Justice and may it please the Court.

Justice William J. Brennan: [Voice Overlap] is that can an employee individually go to an Adjustment board?

Mr. Andrew W. Estes: Your Honor it is my understanding that he cannot, but he can sue his Railroads for failure to do it, I believe there is Supreme Court case on this.

Chief Justice Warren E. Burger: Is it union or the railroad?

Mr. Andrew W. Estes: I think the employee once he is fired, once he is out in the court, I believe he can sue the union for its failure to adequately represent him and join --

Justice William J. Brennan: Now, but suppose he wants to go to the adjustment board route, you mean he can't go unless the union will take his case?

Justice William J. Brennan: Well that -- if that so then what's this case all about.

He has no administrative remedy you are telling.

Mr. Andrew W. Estes: What this case is all about Your Honor --

Justice William J. Brennan: What -- if he can't go with his grievances independently of his union does he have administrative remedy then?

Mr. Andrew W. Estes: May it please Court, we have taken the position that he cannot.

Most particularly in an interesting case like the case at bar.

I hadn’t intended it to bring this out.

There is no evidence by the way, there has been no discovery in the case, and it is almost pure law question.

But my opposing counsel brought out that he could just go back and demand he his job at any time.

I would tell you, the state in my place that Mr. Andrews has gone back, he is gone back with three physician certificates, he went to the chief surgeon for the Railroad who absolutely refused to examine him even and said get out, we don't want you anyway, get out of my office and throw him out.

He is now neither a fish not a fowl, because he is not fired and he is not employed.

Justice William H. Rehnquist: Is that in the record or is this --

Mr. Andrew W. Estes: There is no record judge, I am awfully sorry, There has been no discovery --

Justice Potter Stewart: Well now the problem which seems to divide you gentlemen somewhat and I an inclined to say it's confusing to me is important one, something very easy to find out.

Would you each address yourselves to that in a supplemental memorandum and tell us what is the facts, what is the practice and what is permitted, whether the employee may go to the Adjustment Board without the union whether he can't because as Justice Brennan has suggested that it's rather crucial to decision in this case, if not dispositive?

In another respect I would say and the only way it could be dispositive I think it would be in the favor of the petitioner here.

But, even filing the other way I would certainly urge the Court to find the Moore doctrine is well supported in rationale and that has not been changed through out the years and had expression by Mr. Justice Blackmun.

Unknown Speaker: We won't cross that bridge until we get your responses on this score.

Mr. Andrew W. Estes: Very well, Your Honor I think --

Chief Justice Warren E. Burger: You may argue your point on it if you wish [Voice Overlap] --

Mr. Andrew W. Estes: I would like go ahead with that if I may.

Justice Black expressed the view that the Labor and Management Relations Act should never be construed so as to require individual employee, after he is out of the job to submit a claim involving wages to grievance and arbitration proceedings or to surrender his right to sue his employer in court for the enforcement of his claim acquired.

Well again this was brought out by the opposing counsel.

The railroad and Union agree, but Mr. Andrews is doesn't agree, he is out in the court, he doesn't have a job, he didn't have union, he is out, he wants to sue the railroad for wrongful discharge, he has an action for wrongful discharge recognizable in the State Courts, he is to free pursue it because of the Moore decision and really when we get right down to the final last word on the argument it's our position that we are relying on the Moore doctrine is well founded and has never been changed, either by legislative or judicial act.